UNITED STATES v. ARVIZU

Transcript: 

ORAL ARGUMENT OF AUSTIN C. SCHLICK ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument first this morning in No. 00-1519, United States against Ralph Arvizu.

Mr. Schlick.

Mr. Schlick: Mr. Chief Justice, and may it please the Court:

Since Terry, this Court has held repeatedly that reasonable suspicion analysis requires a common sense evaluation of the totality of the circumstances.

The decision below is fundamentally inconsistent with that rule because it requires law enforcement officers to disregard potentially relevant facts when determining whether investigative stop is warranted.

This Court's decisions in Cortez and Sokolow are especially clear in rejecting attempts to put categories of facts off limits.

In Cortez, the Court held that a vehicle's route, the timing of its trip, and its capacity for carrying illegal aliens together established reasonable suspicion, notwithstanding that each of those facts independently might be consistent with innocent travel.

In Sokolow, the Court rejected a rule that would have limited officers' ability to consider the personal characteristics of suspected drug smugglers.

The Court held that that sort of rule adds to the difficulty of applying the reasonable suspicion standard.

It does not ease it.

And the Court further confirmed that innocent facts, facts consistent with innocent travel, in themselves may together establish reasonable suspicion.

In this case, the Ninth Circuit attempted to establish a rule that would bar categorically consideration of certain facts that the court deemed innocent.

That... that rule presents two fundamental problems.

The first is that it doesn't accommodate the subtleties of real world encounters.

For every categorical rule, there would have to be exceptions and subrules, and even if law enforcement officers could be asked to master those, they would still then have to anticipate new situations, and those rules could not provide guidance when--

Unidentified Justice: Mr. Schlick, you said this is an area in which one can use one's common sense, and I thought that what the Ninth Circuit was telling us was that some items in that list under all circumstances wouldn't cast suspicion.

And one was... had a certain familiar ring with me that when you see a police car, you slow down.

This wasn't a car that came to a screeching halt or was trying to dodge it, and then it just slowed down.

And isn't that a most natural reaction?

Mr. Schlick: --The problem, Justice Ginsburg, was that the Ninth Circuit didn't admit of situations in which deceleration might be relevant.

For example, in the Fifth Circuit's Villalobos case, which we cited in our brief, the law enforcement officer pulled in front of the vehicle that was suspected.

The vehicle then slowed to drop back away from the law enforcement officer vehicle, and the Border Patrol officer in that case deemed that suspicious, that it appeared that the vehicle had changed its speed in order to increase its distance from the law--

Unidentified Justice: But they weren't talking about that case.

They were talking about this case.

And I thought what they were saying was that there was nothing suspicious about the slowdown here, and if that's all that you have, it won't do.

Mr. Schlick: --Justice Ginsburg, we read the court of appeals opinion as attempting to establish categorical rules.

On page 12a of the petition appendix, the court says, we attempt here to describe and clearly delimit the extent to which certain factors may be considered by law enforcement officers in making stops such as the stop here.

On the same page, slowing down after spotting a law enforcement vehicle is an entirely normal response that is in no way indicative of criminal activity.

That... that appears not to have made a... the possibility that deceleration may in some context be suspicious.

And indeed, in the Ninth Circuit's Sigmond-Ballesteros case, decided after this case, the Ninth Circuit interpreted its decision in this case as holding that only certain factors may be considered by law enforcement officers when making stops.

And it's... it's that categorical rule that is inconsistent with the totality of the circumstances test.

Unidentified Justice: I suppose it would be suspicious if... if you're on a highway that has not only a maximum speed but a minimum speed, and... and the car slows down 20 miles below the minimum when it... when it sees a police officer.

That... that wouldn't be a normal reaction, would it?

Mr. Schlick: No.

No, it would not.

Unidentified Justice: And... and do you think it's a normal reaction always to slow down when one sees a police... a police car even if you happen to be going 10 miles below the speed limit already?

Mr. Schlick: It may depend on the particular area, and that's... that may be a question on which you would look to the law enforcement officer's experience and expertise.

Unidentified Justice: I don't do it.

Maybe you do it.

But if I'm 10 miles under the speed limit already, I... I don't immediately slow down when I see a police car.

I don't know why you are willing to accept that as a... as an image of reality that everybody slows down when you see a police car.

If you're... if you're going over the speed limit, I assume you do.

Mr. Schlick: I think your intuition accords with common experience and the holdings of most courts.

Unidentified Justice: There was a concrete record here of what this driver was doing, and he wasn't going 10 miles an hour.

He was going a... a normal speed.

Mr. Schlick: Justice Ginsburg, on page 57 of the joint appendix, Agent Stoddard testified that the extreme deceleration in this case, from about 50 to 55 miles per hour down to about 25 or 30 miles per hour, was not normal and did set respondent's vehicle apart from ordinary traffic on those roads.

Unidentified Justice: What was the speed limit on the roads?

Mr. Schlick: Between 25 miles per hour and 35 miles per hour, Your Honor.

Unidentified Justice: And that's what he slowed down to.

That was an established speed limit?

Mr. Schlick: Yes, Your Honor.

In... in the joint appendix, there are photographs which show speed limit signs, and it's 35 miles per hour down near the southern portion of the roads, 25 in the northern portion.

Unidentified Justice: What... what was the portion where... where he slowed down?

I mean, it was 25 to 35?

No.

It was either 25 or 35.

What was it, do you know?

Mr. Schlick: I... I don't know for sure.

I... I would guess it was 25, but I don't know for sure.

Unidentified Justice: But that's what he slowed down to.

So, he had been going above the speed limit.

That sounds a lot more reasonable then.

I mean, gee, if you don't slow down to the speed limit when you see a police car, you're in big trouble.

[Laughter]

Mr. Schlick: Again, Agent Stoddard testified that that sort of deceleration, that speed, was not common in the area, and it--

Unidentified Justice: You mean they just keep zipping along at 50 despite seeing a police car.

What part of the country is this anyway?

[Laughter]

It's Arizona.

[Laughter]

What was the nature of the road?

Was... was it a regularly paved road?

Mr. Schlick: --No, Mr. Chief Justice.

The road on which respondent was apprehended was a dirt road.

It was a road that Agent Stoddard testified is used primarily by the local ranchers and by Forest Service vehicles and by the Border Patrol itself.

It's... it's not an improved highway.

And it was extremely unusual, Agent Stoddard believed, for a vehicle, a minivan, to be on these roads, and it was a notorious smuggling route.

Unidentified Justice: Is this one on exhibit 5 of the joint appendix, or have I got the wrong road there?

Exhibit 5 is Kuykendall Cutoff Road and Rucker Canyon Road.

Mr. Schlick: Yes, Justice Kennedy.

The... the photographs at the back of the joint appendix depict the route.

They... they moved from the southerly portion of the route up, as you get back to the later pages, toward the northern portion.

Exhibit 24, for instance, is the intersection of Kuykendall Road and Rucker Canyon Road, which is very close to where the apprehension occurred.

The maps in the joint appendix on pages 155 and 157 show the area at issue.

And you can see the first of those maps on page 155 shows the route beginning at the bottom of the page in the center, Leslie Canyon Road.

Respondent then... and that's... that's paved for about 10 miles, about the first 10 miles near Douglas.

Respondent traveled north on that road and then at the T intersection you see approximately in the middle of the page, by which point the... the roads become unpaved, headed right, away from the Border Patrol checkpoint, away from the highway, which would take you north, through the dirt road, proceeded up Rucker Canyon Road, about three-quarters of the way up the page.

That's an important intersection.

Unidentified Justice: Well, he turned left rather than right, didn't he?

Mr. Schlick: I'm sorry.

Turned... turned right at the intersection, at that T intersection where Leslie Canyon Road jogs right, then stayed on Leslie Canyon Road, took a left on Rucker Canyon.

And that was a critical turn.

Had he gone right, he would have been going towards the only recreation areas in the vicinity.

And that might have explained the presence of cargo in his... in his minivan.

Agent Stoddard could see that there appeared to be cargo on the floor of the van.

But he instead turned left, away from the only... the local recreation area and on a route that, if he then took... took a right onto Kuykendall Road, which is... which is again almost in the center of the page near the top between numbers 2 and 3... if he took that right on Kuykendall Road, then he would be circumventing the Border Patrol checkpoint which is indicated by number 1 on the left-hand margin of the page.

Unidentified Justice: The idea that he would eventually go north on Kuykendall and then take... go west to rejoin 191 north of the checkpoint.

Mr. Schlick: That... that's right, and then head up to I-10, which would allow him to go to Tucson... Tucson or Phoenix, for example.

And it was that route which Agent Stoddard testified is a notorious smuggling route, very rarely used by anyone except ranchers and Forest Service personnel--

Unidentified Justice: Although it is a route that could have been used by people going up to the Chiricahuas.

Mr. Schlick: --It's... it's possible, Your Honor, but--

Unidentified Justice: From Douglas.

Mr. Schlick: --the district court addressed that possibility on page 22a of the petition appendix and said that that would require a 40 or 50 mile trip over unimproved dirt roads.

The most logical way to go is to take I-191 straight up I-181 and then across to Chiricahua National Monument.

That's particularly significant in this case because the registration of the minivan was to a block that was just two blocks from I-191 in Douglas, and that makes it all the more inexplicable that a... a vehicle that should know the roads would go out of its way to Leslie Canyon Road, rather than just going two blocks, picking up the highway and heading straight north.

You know, that's... that's the route that you would take if it were a long distance trip.

I said that the cargo couldn't be explained by the recreation area, because it had already passed the turn on Rucker Canyon Road.

Nor could it be explained by a long distance trip because the highway is the road that you would take if you were headed on... on a long distance with children with suitcases or overnight bags.

Unidentified Justice: Mr. Schlick, could I come back to the... to the slowing... slowing up?

I'm not quite sure what the... what the Government's objection to the court's opinion is.

I... I would tend to think that... that it is true, in the circumstances of this case, that if somebody is barreling along at 50, sees a police car, and slows down to 25, that is not at all suspicious.

Indeed, I... I might consider it suspicious if he continued barreling along at 50.

So, you know, if your argument is that in the circumstances of this case, the slowing down was suspicious, I... I don't think I agree with you.

On the other hand, it is the case that the court of appeals seemed to have... seems to say that slowing down can never be suspicious.

Now, which of the two are... are you objecting to?

Do you really think that... I mean, that there was proper suspicion in this case simply because the person slowed down to the speed limit when he saw the police car?

Mr. Schlick: In this case, Justice Scalia, the deceleration is... is not a factor on which the case would turn.

There were other indications of nervousness which I'd like to discuss in a moment.

Unidentified Justice: Okay.

So, as to that factor, your... your... really your only objection is you can't be as categorical as the court of appeals put the point.

Mr. Schlick: That's... that's exactly right.

We think it's a good example of the error of the court of appeals' approach.

But in this case, even looking at the factor of nervousness, there were other indications.

After decelerating, respondent drove past the Border Patrol vehicle and stared rigidly straight ahead, without looking at or acknowledging Agent Stoddard, which--

Unidentified Justice: May I ask this question?

At the very page of the opinion that you call our attention to, the court of appeals said, in reaching our conclusion, we find that some of the factors on which the district court relied are neither relevant nor appropriate to a reasonable suspicious... suspicion analysis in this case.

And are you agreeing with Justice Scalia that the slowing down in this case was not relevant?

Mr. Schlick: --Justice Stevens, we would say that it had some relevance.

It was... it was not a particularly important factor, but it had some relevance.

The... the court of appeals I think--

Unidentified Justice: Do you think the court of appeals erred in saying that in this case it had no relevance?

Mr. Schlick: --Yes, Justice Stevens.

Unidentified Justice: I see.

And what about... what about, you know, not... not waving to the police car as you go by?

I don't know when I... if I were ever exceeding the speed limit and saw--

[Laughter]

--and saw a police car, it seems to me I would slow down and... and try to give the impression that I wasn't slowing down because I saw the police car.

[Laughter]

I mean, you know, you don't hit the brake and wave at the police officer.

[Laughter]

So, why is that a suspicious factor?

I don't see why in the circumstances of this case that's a suspicious factor either.

Mr. Schlick: Agent Stoddard's testimony was that both respondent and his front-seat adult passenger stared straight ahead.

The respondent gripped the wheel very tightly in... in a position that Agent Stoddard deemed characteristic of someone who simply wants to melt into their vehicle if possible, and--

Unidentified Justice: Or maybe somebody who had been going 50 miles an hour in a 25-mile-an-hour zone.

Mr. Schlick: --Again, Agent Stoddard's testimony was... was that respondent's behavior was... was very unusual.

And after he saw those... those and began to follow the minivan, there was another indication of nervousness, which was at the intersection of Rucker Canyon Road and Kuykendall Road.

Respondent turned on his blinker, well ahead of the intersection, then turned it off, drove towards the intersection, and just before the intersection, made a sharp turn and turned on his blinker again, which again indicated uncertainty or nervousness, which supported the inference that he was unusually distracted by the presence of the Border Patrol vehicle.

Unidentified Justice: What's the testimony as to the amount of use this particular route got?

How many cars a day, anything about how many cars a day or an hour came over it?

Mr. Schlick: The testimony, Mr. Chief Justice, was that this road... the sensor hits on... the Border Patrol maintains sensors along Leslie Canyon Road and Rucker Canyon Road, and that the first sensor on Leslie Canyon Road, which responded to northbound traffic, was triggered about once every 2 hours.

Unidentified Justice: So, that would mean one car every 2 hours?

Mr. Schlick: Correct.

And... and that's directly relevant to the expected response.

When you're in an area where one car travels approximately every 2 hours, you're more likely to acknowledge perhaps a friendly wave... another vehicle.

This road was extremely remote, and again, most of the traffic was local vehicles from... from the ranches, and the minivan was a vehicle which was not only unusual by type for this road, because it was not a four-wheel drive vehicle, but also had the capability of carrying a large amount of concealed cargo, which made it well-suited to smuggling activity.

This Court noted in Brignoni-Ponce that that is a factor that is potentially relevant when determining whether investigative stop is warranted in the border context.

The... the second problem with the court of appeals approach, in addition to the fact that it can't comprehend the subtleties the real world encounters, is that it's unrealistic to ask officers to put out of their minds facts that they see before them and believe to be relevant.

Even if officers could do that, they would then be left to speculate about the hypothetical import of the imagined set of facts, and that's going to--

Unidentified Justice: One... one of the things the Ninth Circuit said is just looking at this laundry list and just to throw everything in and mix it all up and say it's suspicious that the driver didn't look at the police officer or didn't wave, but it's equally suspicious that the children did wave.

So, one characterization of that was damned if you do, damned if you don't.

If you wave, that's no good, and if you don't wave, that's no good.

And I think that the... the Ninth Circuit can't be faulted for saying it's not good enough just to list everything that happened and say it's... everything the officer could perceive and say it was all relevant.

Some of it is relevant and some of it isn't.

Why would, for example, the children... how old were the children, by the way?

Mr. Schlick: --12, 10, and 7.

Unidentified Justice: And the children were waving in the back, and something was to be inferred from that?

Mr. Schlick: They weren't simply waving, Your Honor.

Without turning toward the Border Patrol vehicle--

Unidentified Justice: They were waving forward.

Mr. Schlick: --Correct.

Unidentified Justice: And... and the car... the police... the Border Patrol car was behind them.

Mr. Schlick: Correct.

It may be expected that a Border Patrol agent would have some experience with children's reaction to him in his vehicle.

And in this case he said he... he hadn't seen anything like this.

It went on for about 4 or 5 minutes.

It was methodical.

The children waved together, facing forward without... without facing Agent Stoddard.

With respect to the damned if you do/damned if you don't argument, waving or not waving, the court of appeals ignored the fact that... Agent Stoddard's testimony was that he deemed it suspicious that when the Border Patrol vehicle was stopped and respondent drove past, respondent didn't acknowledge him at all.

After that, he turned and began to follow respondent's vehicle, and it was only at that point that the children began their odd waving.

So, it's a reasonable inference that having failed in his effort to avoid the... the Border Patrol officer's attention, respondent then went to plan B, which was we'll attempt to... to look like a family on... on an outing, and one way of... of perhaps deflecting the agent's suspicion is to have the children wave.

But that resulted, from Agent Stoddard's perspective, in a... a very odd circumstance, and that's the exactly the sort of situation that the reasonable suspicion analysis--

Unidentified Justice: To... to what extent, Mr. Schlick, do three judges, say, sitting in San Francisco or Los Angeles or nine Justices sitting here... do we defer to the judgment in these matters of a Border Patrol agent on the scene?

Mr. Schlick: --Ornelas, among other cases, addressed that, Your Honor, and... and held that it's appropriate to give due weight to the expertise and experience of law enforcement officers and local judges.

And in this case, both Agent Stoddard and... and the trial judge deemed this route to be unusual, to be associated with smuggling.

It deemed... the trial judge deemed the factors that I've enumerated to be significant in the context of what was going on out there, and I believe those are the trial judge's words.

We have to look at this in the context of what was going on out there.

The cargo, for example.

He considered the possibility that it might just be camping supplies, but he said that would be... that would be a possible inference were it not for all the other indications of illegality.

So, he... he correctly undertook to analyze the facts--

Unidentified Justice: May I ask this question?

I got the impression, in reading the officer's testimony, what he really did is once he checked and found where the car came from, where it was registered in a high drug area, that's what triggered his decision to stop the vehicle.

And my question to you is supposing all he knew was the very unusual circumstances of a family driving in an area that's mostly driven through by ranchers and... and not families.

That fact, the rare amount of traffic on the road, and the... and the location from which the car originated, would that be enough in your view?

Mr. Schlick: --If you--

Unidentified Justice: --put aside all these rather unusual things like waving and slowing down and so forth.

Would those three facts be enough in your view to justify the stop?

Mr. Schlick: --As... as I understand your question, no, I don't think they would be.

But when you start adding factors such as missing the turnoff to the recreation areas, such as carrying the concealed cargo--

Unidentified Justice: Well, missing the turnoff is part of the location, as I say.

The unusual location of the vehicle at the time of the stop.

Is that... and the fact it was not the normal.

You normally see ranchers or... or Border Patrol people.

You don't normally see families out there.

That's a... that's a road that is not usually used.

Is the... I'm just wondering if the rarity of the... of the general scene plus the fact that they did... that the officer did check and find that this vehicle was registered in the... in the area known for drug smuggling, was that enough?

I think you said no.

Mr. Schlick: --Is... in your hypothetical, Justice Stevens, is the fact that it was a minivan?

Unidentified Justice: Yes.

Mr. Schlick: Yes, yes.

If you knew that it was a minivan, which was out of character, suited to carrying aliens, and knew that the route had been taken, that last turn onto Kuykendall Road, north so that the minivan would not approach the checkpoint, then yes, there would be reasonable suspicion.

Unidentified Justice: In other words, you're saying... what you're saying I think is that even if the Ninth Circuit were correct in disregarding the waving and the slowing down and the failure to wave once, you'd still have a reasonable suspicion.

Mr. Schlick: Yes, Justice Stevens.

It would be our position that even if you consider only the three factors that the court of appeals considered categorically in the analysis... that would be the route, the fact that it was a minivan, and the time.

The time was when the Border Patrol was likely to have stepped down its surveillance.

The court of appeals held if you considered those factors, there was no reasonable suspicion.

We would disagree and say even if you only consider those factors, there was reasonable suspicion.

But the appropriate analysis is to consider all the factors collectively, and then clearly there were grounds for the stop.

If the Court has no further questions--

Unidentified Justice: I have another question, if... if you have the time.

This checkpoint is about 30 miles north of the border.

Was there also a checkpoint in the... in the town from which the car originated?

I'm just a little puzzled at what the... at the setup here, why there's the checkpoint 30 miles from the border, and whether or not there was one closer to the border.

Mr. Schlick: --There... there's a border inspection station in... in Douglas, but the Court explained in Martinez-Fuerte the... the criteria the Border Patrol uses to establish its fixed checkpoints, and I think those criteria continue to hold true today.

One of them is that the checkpoint should be outside, about 25 miles from the border, because 25 miles is the zone in which a border crossing card allows an alien to travel.

So, you would... so, you would be stopping aliens who were... who were legally there because of their border crossing card.

Also, you want your checkpoint to be somewhat remote from... from the population center.

Douglas is a town of about 15,000 people.

And you want your... your checkpoint to capture traffic which is heading north, away from the border, rather than just local traffic within that area.

Unidentified Justice: And then the other question I had is about the sensors.

There were two sensors triggered in this case, as I understand the record.

Are there... are the sensors spotted purely in order to identify every vehicle that uses this particular road that this... this man used?

Mr. Schlick: The sensors are magnetic sensors which are directional.

So, they don't pick up southbound travel, which would... which would not be consistent with smuggling away from the border.

They do pick up all northbound traffic.

So, it would pick local--

Unidentified Justice: Well, they picked up not only the northbound, but also the fact that he turned right the first time.

No, left the first time.

He passed the Rucker Canyon Road.

Mr. Schlick: --Yes.

In this case there were two sensors.

One was before Rucker Canyon Road.

When that sensor was triggered, Agent Stoddard began to drive towards respondent to... to check out the sensor hit.

And then a second sensor was triggered after respondent turned left on Rucker Canyon Road and away from the national forest.

Unidentified Justice: Away from the recreational area.

Mr. Schlick: That's right.

Unidentified Justice: Yes.

Very well, Mr. Schlick.

Ms. Brambl, we'll hear from you.

ORAL ARGUMENT OF VICTORIA A. BRAMBL ON BEHALF OF THE RESPONDENT

Mr. Brambl: Mr. Chief Justice, and may it please the Court:

I wanted to respond to the question that you asked, Mr. Chief Justice, about who should we give due weight to and who is going to know better, the officer in the field, the district court, or the court of appeals.

And certainly the decision in Ornelas v. United States does instruct us that we give weight... we review for clear error the... the factual findings that the district court made.

However, inferences from those findings that the district court makes and... and that the officer makes are reviewed.

They're reviewed giving due weight to those.

That is not as strict or rigorous as the standard as for clear error.

And then finally, Ornelas... that decision really wanted and instructed the courts... the courts of appeal to issue opinions that were instructive to firm up the precedent and to offer guidance to everybody, to officers in the field, to litigants, to district courts.

And really, the Ninth Circuit in this case... they handle the lion's share, over two-thirds of... or approximately two-thirds of the border stop cases come from the Ninth Circuit.

They also have developed experience.

They've developed both practical experience in seeing these cases over and over again and seeing neutral and rote factors offered over and over again that really don't have any weight.

And they're instructing through this opinion and several other opinions that they've issued over the last 20 or 30 years--

Unidentified Justice: All those... that type of opinion seems to me contrary to our opinion in Sokolow where we said you just can't categorize these kind of factors and say that this kind of thing is never useful and something else is always useful.

Mr. Brambl: --I think that all the parties agree that the totality cannot have categorical rules because--

Unidentified Justice: Well, then certainly you... you must... you're not defending then some parts of the Ninth Circuit opinion.

Is that correct?

Mr. Brambl: --I think that some of the language that the Ninth Circuit used was inartful in that it made it sound... if you take one sentence out of the whole opinion, it would make it sound like they were creating categorical rules.

But when you read everything, the whole opinion, in the context, they do cite all of the cases this Court has decided: Sokolow, Terry, Cortez, Brignoni-Ponce, Wardlow.

They say that they consider everything.

But then they go through factor by factor.

And I do defend the way they went about that, separating out the factors and discussing them because it seems that that would be the only orderly way to go about the analysis, and the only way to... to offer an opinion that really does give some instruction and guidance.

Unidentified Justice: How... how is that?

I was quite disturbed actually by the opinion because I thought there were five or six Supreme Court cases that say this is just the kind of opinion you should not write.

So, then I... I went through it, and it says, for example, one of the factors, the fact the minivan slowed, is prohibited by our precedent.

Well, my own common sense reaction would be it all depends.

If he was going 40 miles an hour and slowed to 10 in... in 2 seconds, I'd say, why in the middle of the desert did he feel compelled to slow so much?

I... I suspect people don't give tickets in Arizona for driving 50 miles in the middle of the desert.

Maybe they do, but it doesn't say that.

I think it would depend.

He says that the fact that a van is registered to an address in a block notorious for smuggling is of no significance and may not be given any weight.

Then there are four or five others which are listed where the second factor is of questionable value.

The failure... he has five of them there, which say our precedent says you give no weight.

Now, I just don't see how to square that either with Ornelas, Sokolow, or five other precedents of this Court, as well as with common sense, because it seems to me it would all depend.

Mr. Brambl: Well, I certainly agree that... that there may be circumstances in which where you live or slowing down could be.

With respect to the first one, where they do say squarely prohibited by our precedent, they go ahead and... and then relate instances where slowing down... where they do find that this is suspicious.

Just merely the act of slowing down they have determined, using common sense and... and I think a lot of the comments this morning illustrate that if maybe not a universal reaction, it's so common to slow down when you see a law enforcement officer, that it's meaningless.

Unidentified Justice: Maybe... maybe we really don't know enough to say that.

I... I was engaging in that conversation with the Government's counsel.

But... but in point of fact, I'm not sure what the reaction is, as... as Justice Breyer puts it, out in the middle of the desert.

For one thing, I don't know whether... whether Border Patrol officers can give speeding tickets.

For another thing, I don't know whether it's generally known that Border Patrol officers cannot give speeding tickets.

And therefore, I don't know whether it's, indeed, quite common out in the middle of the... of the vast desert of Arizona for people to go barreling along at 50 miles an hour past a Border Patrol agent and ordinarily to wave and say hi.

[Laughter]

These are all matters that I'm sure the Border Patrol agent was aware of, and perhaps the district court.

I'm less certain that the court of appeals out in San Francisco was... was aware of all of those things.

Why shouldn't I give the Border Patrol agent and the district court the benefit of the doubt?

Mr. Brambl: Well, the agent... like so many of the factors in this case, the agent didn't really tie down or tie into his experience why slowing down would be predictive or indicative of not just speeding but of criminal activity such as alien or drug smuggling, which was the reason that he was out there.

Unidentified Justice: Well, he said, people, when they see my Border Patrol car, normally don't slow down.

He certainly said that, and he found that to be unusual.

Now, why... why should I think that that is false?

Mr. Brambl: Well--

Unidentified Justice: Do you know, as a matter of fact, whether Border Patrol agents give speeding tickets?

Mr. Brambl: --I think that that's an open question.

Unidentified Justice: It's an open question whether they give speeding tickets?

Mr. Brambl: But I believe that generally--

Unidentified Justice: Don't they have other things to do?

Mr. Brambl: --They do have other things to do.

I believe that if driving would be characterized as dangerous where maybe the public was in jeopardy, that they would be authorized to make a stop, but just because someone is speeding or violating an Arizona traffic law, I don't believe that they would make such a stop.

But I wanted to point out that the Ninth Circuit opinion went on, after they said that this factor was squarely prohibited, to say the kinds of ways that slowing down or a deceleration would be indicative of reasonable suspicion or would... would have some weight.

And they characterized that as evasive driving where... where perhaps the Border Patrol is seen and then there's an act of evasion as well as deceleration.

Unidentified Justice: Ms. Brambl, the... the district court ruled for the Government in this case, and the Ninth Circuit reversed.

And I don't see that in the district court's opinion, which the court of appeals was... was reviewing, that same laundry list that appears in the Ninth Circuit's decision.

So, what I don't understand is if you just take the district court's opinion, what did the district court rely on that could be questionable?

The district judge did not rely on the children waving, as I recall.

Mr. Brambl: Well, the district court judge did refer to that, but what's... what the... the court of appeals picked up on, which the district court didn't, was all of the inferences that... and subjective beliefs that this waving entailed because it wasn't just... the children were facing forward and waving forward.

So, it was a big leap that they were even waving at the agent to begin with and an even bigger leap that the agent made that they were coached to do so, presumably by the driver or the adult passengers.

And that's what the Ninth Circuit seized on.

And another big deficiency with this is how does waving or waving in a mechanical, odd way, as the district court found... how would that be tied in to criminal behavior?

And the record doesn't indicate how.

Unidentified Justice: How do we know from the record what kind of wave it was?

What... what he says in his testimony is they kind of stuck their hands up and began waving to me like this.

Well, I'm sorry.

[Laughter]

There we are.

Okay?

Now, the person who saw that was the district judge, and the way it was characterized by the policeman is it wasn't in a normal pattern.

It looked like they were instructed to do so.

And without being able to see what he did, it's a little tough for me.

And... and so, I don't know.

What the courts both say is it doesn't add much.

The odd thing about the court of appeals opinion is it seems to suggest, because it doesn't prove the case, it's not relevant.

Now, I... I mean, what's the response to that?

Mr. Brambl: Well, I think that... that goes to the heart of the issue presented by this case, which is what can the court of appeals exclude as factors, even if they do it on a case-by-case basis.

Can they look at factors and just say, you know what, this is so marginally relevant or completely weightless that we're not going to... to count it in the equation?

And although I don't defend this--

Unidentified Justice: But it does seem as though the Ninth Circuit was trying to suggest that no other court could consider it in the calculus either in the future and... and was making some kind of effort to develop some more rigid guidelines than we've seen in the past.

Let me tell you what concerns me very frankly.

We live in a perhaps more dangerous age today than we did when this event took place.

And are we going to back off from totality of the circumstances in an era when it may become very important to us to have that as the overall test?

And I'm concerned that the Ninth Circuit opinion seemed to be a little more rigid than our precedents require or that common sense would dictate today.

Mr. Brambl: --Well, I certainly agree that totality and reasonableness has to remain flexible, and that given the times that we live in, that perhaps adjustments are going to be made.

Thankfully this case I don't know presents the... the specter of that.

And it... it seems that what the Ninth Circuit tried to do in this case was to really provide some meaningful guidance.

They could have just listed the factors in a very straight forward way without any discussion and just said, you know what?

We add all these together and there's no reasonable suspicion.

And we probably wouldn't be here today.

However, what they tried to do I think is to provide some guidance for everybody because when we get these cases as--

Unidentified Justice: When we have said that the test is totality of the circumstances, the amount of guidance that can be provided by... by a court is... is somewhat limited.

Mr. Brambl: --It is but there's a surprising repetition of factors.

This Court in--

Unidentified Justice: A surprising repetition of factors by the Ninth Circuit.

Mr. Brambl: --Well... well, even this Court in Ornelas recognized that certain fact patterns were similar, such as Sokolow and Royer and a few others, that really... given how fact-specific they are, there really is, especially when you start looking in border areas where... for instance, there are a number of stops where there are checkpoints and... and people claiming that perhaps these people are on the road for checkpoint evasion purposes.

Unidentified Justice: Yes, but... but you know, checkpoints vary too.

The checkpoint north of San Diego is... is in a heavily populated area where things may be quite different than out here in the Sulphur Springs Valley where there aren't very many people.

Mr. Brambl: Well, sure.

It seems that... that if you look through, for instance, just Ninth Circuit opinions, or if you go over to Fifth Circuit and Tenth Circuit, but also look at the... the border areas, you do see surprising number of repetition, even though perhaps some are in very urbanized areas and some are in rural areas.

Unidentified Justice: Well, that's... that's true.

The officers are... are trained to tell the district court, the finder of fact, all of the factors that entered into their judgment.

It seems to me, though, a fair reading, a necessary reading of the Ninth Circuit's opinion, that we now have seven factors that every officer in the Ninth Circuit must memorize and not rely on.

And I just don't see how that's consistent with the ability of the police to perform their work or consistent at all with our opinions.

And as the court... as the Government has told us, the Ninth Circuit itself has construed this opinion in subsequent cases precisely that way.

Mr. Brambl: Well, the Ninth Circuit, even since this opinion, still examines all of the factors.

They still look at the totality even in the Sigmond-Ballesteros case that the Government cited in its briefs.

However--

Unidentified Justice: You have a point that's a serious point I think.

The first time I see a case where the policeman testifies I... I stopped this individual because he looked nervous as he came away from the airplane down to the baggage counter, and he looked both ways, and then there was sweat on his upper lip and he walked around the baggage thing, and then, looking around, went over to his suitcase... the first time you see that, you think, well, that makes sense to me.

But when you see exactly the same thing 15 times, you begin to wonder.

Now, that I guess is your point.

Mr. Brambl: --Well, it... well, it is.

Unidentified Justice: Okay.

Now, what do we do about that?

I had thought that the way to deal with it is... totality of the circumstances is the way to deal with it, not having rigid rules that say you can never consider whether his... he was sweating or wasn't sweating.

In other words, I don't see how a rigid rule helps.

It puts too many cases on one... it gets the wrong cases.

It doesn't draw a sensible line.

Now, what's your view of that?

I see your problem.

I want to know the solution.

Mr. Brambl: Well, I think that the solution is to allow courts like the Ninth Circuit and other circuits to say, look, we see the same thing time and time again, and it really has very little or no meaning.

Officers, we want you to tell us why this factor is suspicious.

It's not going to be enough anymore to come in and just say, he looked nervous, he slowed down.

And--

Unidentified Justice: But that... and I... I think your... your point is... is well taken as far as you go, but it seems to me that that's not going to help the Ninth Circuit opinion here because what you're saying is don't rely on highly general factors which are so general that we really, in the abstract, don't know where they point.

Be more specific.

Give us facts not conclusions.

But that's not... that's not what the Ninth Circuit said.

The Ninth Circuit, in effect, said, well, we're... we're simply going to exclude certain categories of fact.

Mr. Brambl: --Well, as I said, the language the Ninth Circuit used could have been a lot more clear and a lot more artful.

Unidentified Justice: Well, it might have said what you said, but it didn't say what you said.

I mean, isn't that so?

Mr. Brambl: Well, they did say frequently, and in effect, when there was a rehearing in this case, they amended the opinion to add under the circumstances of this case and in this case on many, many times.

Unidentified Justice: Maybe not often enough.

[Laughter]

Mr. Brambl: It would have helped.

Unidentified Justice: Because... because initially the opinion did read categorically we don't consider slowing down, we don't consider kids waving, and then they threw in a lot of under the circumstances in this case, not in... in every instance, but in a number of cases.

That's... the amendment seems at odds with what the original opinion was, which seemed to be saying we have three categories here: never relevant, sometimes relevant, always relevant.

Mr. Brambl: And I think you're right.

They... I wouldn't say that they were categorical in excluding, but they... they certainly did seem to suggest that... that certain factors were not relevant, and they did add in this case.

And basically if someone comes into court with the exact same factor and they're not able to show why that's relevant or probative in this case, why this factor isn't neutral and does have an inference of criminal activity, then that factor, if you follow the... the other courts follow the Ninth Circuit's opinion it's going to... it's going to be excluded.

It's not going to be considered as relevant or probative.

I think that that is the kind of guidance that the circuits should be offering.

Unidentified Justice: Well, one thing that the circuit didn't do and it did puzzle me was when I read the district court's opinion, I thought the district court was saying, yes, I could go along with they're in a recreation area.

But when it came to a certain point and they made a turn, it made no sense at all because if that's where they were going to go, they should have gotten right on the highway.

That seemed to be unanswered, that.

Why wasn't... the... the Ninth Circuit didn't deal with that as precisely as the district court did.

Mr. Brambl: That's true, but the Ninth Circuit did point out... and if you look at the map that's on... on page 157 of the joint appendix... that's the map that we submitted in connection with this case and that the district and the... the Ninth Circuit considered... it shows that... it's got a lot more detail, as far as a lot of the destinations.

And when the Government said that really there weren't any destinations beyond Rucker Canyon, beyond where the stop occurred--

Unidentified Justice: Where you turn onto Kuykendall?

Mr. Brambl: --Yes.

Once you turn onto that road and you keep going, you can see to the east there's a number of campgrounds, a number of areas, including--

Unidentified Justice: The Chiricahua?

Mr. Brambl: --Yes.

Unidentified Justice: Yes, but to go from Douglas to Chiricahua National Monument would be... would be extremely odd to go the route this minivan took.

You'd go up... up 191 and cut over above the checkpoint.

Mr. Brambl: Well, the van was appropriate for that road and the conditions, and I would point out that when the agent had--

Unidentified Justice: Well, if it's appropriate, if it's... it's also appropriate to go on a paved highway, I take it.

Mr. Brambl: --Well, sure, but--

Unidentified Justice: I mean, why would you go up this very winding road to a place that you can get to much more quickly by going up a paved highway?

Mr. Brambl: --It might be a... a matter of preference and... and taste.

But these areas are beautiful and--

Unidentified Justice: Well, you know, all of these factors... as Justice Breyer suggested, we're not saying that they would prove guilt beyond a reasonable doubt or that they would amount to probable cause.

But all we're talking about is reasonable suspicion.

Mr. Brambl: --But it isn't suspicious for a family from Douglas to use a road that leads right from Douglas, that start out... that starts out 10 miles paved, to go through a beautiful area up to perhaps Chiricahua Monument or some of the areas along there on the--

Unidentified Justice: Yes.

You can't... it's obviously nothing criminal.

But what... what did the respondent say, that he was going to meet somebody there?

Mr. Brambl: --That's correct.

Unidentified Justice: What's... how does that tie in with going to a recreational area?

Mr. Brambl: Well... well, it really doesn't because we know that he was involved in illegal activity, but that's the hindsight of what the officer found after the stop.

And the... the--

Unidentified Justice: Would you comment on a... on a phase of the case that keeps puzzling me?

The... the sensors on the road.

It must be that the... that there was some suspicion on every vehicle that went up here because I guess the first sensor that was triggered caused the officer to... to go over and take a look at the vehicle, and that happened rarely enough, so you make a special examination of every vehicle that trips the sensor.

And then if they trip the second sensor, that's... they're doubly suspicious.

And how... how relevant is that in the whole picture?

Mr. Brambl: --Well... well, I think what's important to recognize is that when you look at the maps, there aren't too many roads that lead anywhere from Douglas because it's right on the border.

So, there's the main road, the paved one, that the district court that Mr. Arvizu should have taken, and then there's this dirt road, the unpaved one, which is quite well-maintained, and they have sensors on that to catch all the cars that avoid the checkpoint.

But my point is that every road that leads away from the border is suspicious to some degree and can be labeled that way.

It happened to be--

Unidentified Justice: It is particularly suspicious if there's a much more rapid route available, rapid and comfortable.

If you got three kids in the car, you generally don't want a bumpy road.

Mr. Brambl: --Well, they were going 50 to 55 miles per hour.

Unidentified Justice: I know.

Mr. Brambl: And there was no testimony that the car was flying... the van was flying all over the place, which... which tells me... and the pictures bear it out... is that this wasn't... it was a dirt road and it was in a... a fairly isolated area, not full of houses and... and whatnot.

But this was a decent road.

Unidentified Justice: It's not only an isolated area, but the testimony was that the people who normally used the road were locals, ranchers or others, that it was not a road frequently traveled by families.

Mr. Brambl: However, the... that was the testimony by the Border Patrol agent.

Unidentified Justice: Right.

Mr. Brambl: The investigator from our office testified that this road was used and enjoyed by all kinds of families.

The Chiricahuas are a beautiful area.

There are a number of areas within them that... that are visited by people from all over, and because they're basically in the... in the residents of Douglas' back yard, people from Douglas frequent that area.

So, we don't have a record as to how many sensor hits turn out to be smugglers, how many turn out to be ranchers, and how many turn out to be people from Douglas visiting the area.

Unidentified Justice: But we do have a record that suggests that every time somebody trips the sensor, they go out and take a look at them.

Mr. Brambl: That's true.

Unidentified Justice: Yes.

Mr. Brambl: And... and it would be a shame if... if every family on a road like that or on that road in a minivan on a holiday would be subject to heightened scrutiny just because this happens to be a road where smugglers sometimes use it.

And--

Unidentified Justice: Is there any indication there ever has been such a family?

I mean, I imagine if there were an innocent family that happened to accidentally come from an area where there is a lot of smuggling, that doesn't... you know, not everybody is a smuggler in such an area.

They drive with their family just for recreation 50 miles out of the way.

Their children wave oddly.

[Laughter]

They screech to a halt, and there they were, stopped.

I... I guess they would be sort of outraged and there might be some publicity about it.

Has there been such a--

Mr. Brambl: --Well, one of the problems with... with Fourth Amendment issues is that the vast majority of innocent people that are protected by the Fourth Amendment often remain silent when they are subjected to arbitrary or... or random stops.

Unidentified Justice: --I'd feel much more sympathetic to... to that person than... than I would to your client whose... whose argument essentially is, yes, I was indeed a smuggler, but... and he suspected me to be a smuggler and he turned out to be right.

But the suspicion was not accurate.

I don't understand that.

Should we give any weight to the fact that he turned out to be right?

Does that... does that have any bearing on whether the suspicion was reasonable or not?

Mr. Brambl: It doesn't.

In fact, if we had that kind of test, then we would have no way to litigate reasonable suspicion issues because the only way we get to court--

Unidentified Justice: I'm not saying it's conclusive.

I'm just saying, you know, I'm... I'm more inclined to find that the Border Patrol agent who stops a smuggler had a reasonable suspicion than I am to find that a Border Patrol agent who stops a... a happy family out on outing had a reasonable suspicion.

Mr. Brambl: --Well, the problem is there weren't really any factors or--

Unidentified Justice: How would one know about the stops of someone who is a perfectly law-abiding citizen?

Nobody is pressing charges against them.

Quite the contrary.

And very few of them would bother with a Bivens action given the qualified immunity.

So, we don't hear from those people.

And I thought the whole idea of the Fourth Amendment, frankly, is that you have to protect the crooks because if you don't protect them, then the innocent, the law-abiding people will lose their protection.

Mr. Brambl: --That's exactly right.

The... the Fourth Amendment protects all of the law-abiding people, and it seems like Terry struck a balance.

You... you can stop people when you have reasonable suspicion, but that's the floor below which you cannot go because otherwise you're casting in a large universe of... of innocent, law-abiding citizens who are going to be stopped.

And they're the people that we're concerned about in this litigation.

And obviously our client is not a sympathetic figure because he was doing something wrong.

But all of the objective factors that were available to the agent pointed not to a smuggler running dope or aliens, but instead to a family that was on an outing on a... a lovely day on a... a very scenic area.

All of the factors that the Ninth Circuit found had some level of suspicion, the fact that it was a minivan, the fact that it was a road that could be used by smugglers and could be used to avoid the sensor, and the fact that it was 45 minutes before a Border Patrol shift change... all those are really just the setting.

When you get to the individualized factors that were listed, those factors are the ones that fall short.

Unidentified Justice: Well, but just before the shift change is an individualized factor.

Mr. Brambl: Well--

Unidentified Justice: I mean, we're not saying that anytime someone comes along this road it's suspicious.

We're saying it's suspicious just before the shift change.

Mr. Brambl: --Well, it's certainly 45 minutes before a shift change when perhaps, depending on where the agents are out in the field, some of them may be returning back.

But it... it would seem inappropriate to say, families, you better find out when Border Patrol shift changes are because otherwise you won't... you travel on these roads, you're going to get stopped.

And--

Unidentified Justice: Would you explain to me the significance of the shift change?

I frankly didn't quite understand.

Mr. Brambl: --Well, the Border Patrol claims that smugglers, in general, are aware of when they change shifts and--

Unidentified Justice: But what difference would it make... does that make?

Mr. Brambl: --Well, the thought is that smugglers would then think they're getting by because all of the agents are at the... at the station.

The truth of it is, we see this factor so often throughout the... the published cases, that it seems a strategy, if it is one, that does not work because--

Unidentified Justice: But the idea would be that the Border Patrol agents were all at the checkpoint and wouldn't be out in the field to... to be able to follow up on any information from the sensor.

Mr. Brambl: --That's exactly right.

Unidentified Justice: But I still don't understand because that would be at the moment of the change.

20 minutes ahead of time some will be coming in, and 20 minutes after some will be going out.

They're still within... within time to react to a sensor, which they did.

Mr. Brambl: Well, sure.

Unidentified Justice: It still really puzzles.

Mr. Brambl: And that's the point we were able to make in the... in the record that the... the court of appeals reviewed, which is that when... exactly when shift change would occur and when the agent--

Unidentified Justice: Thank you, Ms. Brambl.

Mr. Brambl: --Thank you.

Unidentified Justice: Mr. Schlick, you have 5 minutes left.

REBUTTAL ARGUMENT OF AUSTIN C. SCHLICK ON BEHALF OF THE PETITIONER

Mr. Schlick: Mr. Chief Justice, unless the Court has further questions, we submit that the judgment of the court of appeals should be reversed.

Unidentified Justice: Tell me.

Explain to me again why the shift change is so significant.

[Laughter]

Mr. Schlick: Certainly, Justice Stevens.

The... the testimony was that agents who are out in the field will, as the 3:00 p.m. shift change approached, head back to--

Unidentified Justice: Right.

Mr. Schlick: --the checkpoint on I-191.

That drive would take perhaps 45 minutes, perhaps a half hour, perhaps as much as an hour, depending on where they were.

So, during that period, a Border Patrol agent who was, let's say, stationed on Leslie Canyon Road, supervising the road, would be driving back.

Unidentified Justice: He'd be driving back, but at the same time the sensors are working.

If the sensor is triggered, they tell him... they say, turn around and go back, which is what happened to this guy.

I just don't understand it.

Mr. Schlick: That's true.

And Justice Stevens, you may be thinking more clearly than smugglers.

What smugglers see is the absence of Border Patrol vehicles, and they take that as an indication that--

Unidentified Justice: Does the record tell us whether it was generally known that there were sensors on this road?

Mr. Schlick: --The record does not.

It does not reveal that, no, Your Honor.

Unidentified Justice: I had the feeling it might be a different case if they just put a sign up saying, strangers in this area are subject to stop if they're not... you know, if they're not local people.

We got sensors that will catch you.

But if they gave them notice, I wonder if it would be a different case.

Mr. Schlick: Certainly, Justice Stevens, the smugglers are well aware of the location of the checkpoint and the route to... to evade it.

Unidentified Justice: But not of the sensors you think.

Mr. Schlick: I... I can't answer that question.

The record doesn't reveal.

Unidentified Justice: Are there... is there anything in the record that suggests at all, or anywhere, that there are other... there are families, that sometimes people do use this for picnics?

They like sightseeing.

They want to go up there on this old dirt road.

Is there any... any evidence on that at all?

Mr. Schlick: The record does include evidence that the recreation areas off of Rucker Canyon Road... if respondent--

Unidentified Justice: Well, that's one of them, but there's one further to the north.

So, somebody who likes driving on old dirt roads, as some people do, might take their family, drive up there, going further to the north.

So, I wonder what the state of the... any evidence at all in there that... that families who are not smugglers do use this road once a week, once a day, once a month.

Anything?

Mr. Schlick: --No, Justice Breyer.

The... the testimony was that that recreation area to the north existed.

There was no testimony that any particular number of... of families do, in fact, use these roads.

The testimony to the contrary was that ranchers and Forest Service personnel and the Border Patrol itself used these roads.

The district court's finding on page 24a of the petition appendix was that this route was not a logical route to get up to the Chiricahua National Monument.

Chief Justice Rehnquist: Thank you, Mr. Schlick.

The case is submitted.

Transcript: 

Argument of Chief Justice Rehnquist

Mr. Rehnquist: I have the opinion of the court to announce in NO. 00-1519, United States versus Arvizu.

On a January afternoon four years ago, border patrol agent Clinton Stoddard was working on a checkpoint along US highway 191 about 30 miles north of Douglas, Arizona which lies on the United States Mexico border.

At the checkpoint, border patrol agents stop cars to look for illegal immigration and smuggling.

Smugglers try to avoid the checkpoint by taking unpaved and primitive back roads around them.

Stoddard received a report that a sensor placed along the back road had been triggered indicating that a vehicle might be following a common smuggling route through a thinly populated area between the highway and a national forest.

He drove to investigate and saw respondent's mini van.

It slowed dramatically.

The respondent who was driving appeared stiff and nervous.

Three children were inside.

The position of the children’s feet in the back seat suggested cargo on the floor.

Stoddard followed the mini van and learned that it was registered to a Douglas neighborhood notorious for smuggling.

After the mini van turned away from known recreational areas and took the last turn to avoid the checkpoints, Stoddard decided to stop it.

A vehicle search uncovered 128 pounds of marijuana, some of it concealed on a duffel bag beneath the children’s feet.

Respondent was charged with possession with intent to distribute marijuana, he moved to suppress the evidence of the drugs arguing that the stop was not supported by any reasonable suspicion as required by the Fourth Amendment.

The District Court ruled against him but the Court of Appeals for the Ninth Circuit reversed.

And in opinion followed with the Clerk of the Court today we reverse the Court of Appeals.

In its opinion the Court of Appeals set out to clearly delimit the factors an officers can consider in making stops like the one involved here.

It held at seven factors including respondents slowing down were simply out of bounds in deciding whether there was reasonable suspicion and that the remaining factors do not satisfy the Fourth Amendment.

This methodology is totally contrary to our prior decisions.

In cases such as Cortez versus United States we have siad that the reviewing court should make reasonable suspicion determination by looking at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.

This standard allows officers to draw on their own experience and training to make inferences from the cumulative information before them.

It is irreducible to a neat set of rules.

In United States versus Sokolow we rejected a holding by the Court of Appeals that sought to distinguish between incriminating evidence and other types of evidence.

The Court of Appeals approach in this case fairs no better it would seriously undercut the totality of the circumstances principle that governs reasonable suspicion determination.

Facts that maybe unremarkable on one context, maybe quite relevant in another, analyzed under the proper standard to stop was constitutionally permissible.

The decision is unanimous.

Justice Scalia has filed a concurring opinion.